Stacy Tebo v. City of Debary, Florida ( 2019 )


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  •                Case: 18-13819     Date Filed: 09/03/2019   Page: 1 of 9
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-13819
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 6:16-cv-01599-GAP-DCI
    STACY TEBO,
    Plaintiff-Appellant,
    versus
    CITY OF DEBARY, FLORIDA,
    LEO DANIEL PARROTT,
    individually and in his official capacity,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (September 3, 2019)
    Before MARCUS, WILSON and BLACK, Circuit Judges.
    PER CURIAM:
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    Stacy Tebo appeals the district court’s grant of summary judgment in favor
    of her former employer, the City of DeBary, Florida (the City), and her former
    supervisor City Manager Leo Daniel Parrott, in her employment discrimination suit
    alleging gender discrimination and retaliatory discharge, in violation of 42 U.S.C.
    § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and the
    Florida Civil Rights Act (FCRA), Fla. Stat. § 760.10(1) (2015). 1 The City
    maintained it fired Tebo for insubordination and disloyalty, among other things, as
    documented in a termination letter she received from Parrott. On appeal, she
    contends the district court erred in finding she did not establish pretext for her
    gender discrimination claim, and the district court incorrectly granted summary
    judgment on that basis. She further contends the district court erred in granting
    summary judgment on her retaliation claim because a jury could infer Parrott fired
    her for writing a letter to the Equal Employment Opportunity Commission (EEOC)
    alleging gender discrimination.
    After review,2 we affirm the district court as to Tebo’s claim of gender
    discrimination, but reverse and remand as to her retaliation claim.
    1
    Tebo also raised other claims in her complaint, including hostile work environment and
    unequal pay. However, she has abandoned those claims on appeal by not raising them in her
    brief. See Sapuppo v. Allstate Floridian Ins. Co., 
    739 F.3d 678
    , 680 (11th Cir. 2014).
    2
    We review de novo a grant of summary judgment. Holloman v. Mail-Well Corp., 
    443 F.3d 832
    , 836 (11th Cir. 2006). “Summary judgment is appropriate when the evidence, viewed
    in the light most favorable to the nonmoving party, presents no genuine issue of material fact and
    compels judgment as a matter of law in favor of the moving party.” 
    Id. at 836-37.
                                                    2
    Case: 18-13819        Date Filed: 09/03/2019        Page: 3 of 9
    I. DISCUSSION
    A. Gender Discrimination
    Title VII precludes employers from firing, or intentionally discriminating
    against, an employee “because of” her gender. 42 U.S.C. § 2000e-2(a).3 A Title
    VII discrimination claim that relies on circumstantial evidence is evaluated under
    the McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    (1973), burden-shifting
    framework. Chapter 7 Tr. v. Gate Gourmet, Inc., 
    683 F.3d 1249
    , 1255 (11th Cir.
    2012). Under this framework, once a plaintiff successfully establishes a prima
    facie case of discriminatory discharge, the burden then shifts to the employer to
    proffer a legitimate, non-discriminatory reason for its employment decision against
    the plaintiff. McDonnell Douglas 
    Corp., 411 U.S. at 802
    . If an employer offers
    such a legitimate reason, the burden shifts back to the plaintiff to show that the
    proffered reason is a pretext for discrimination. Combs v. Plantation Patterns, 
    106 F.3d 1519
    , 1528 (11th Cir. 1997).
    3
    Because claims under the FCRA are evaluated under the same analytical framework as
    Title VII claims, we discuss only Tebo’s Title VII claims. See Standard v. A.B.E.L. Servs., Inc.,
    
    161 F.3d 1318
    , 1330 (11th Cir. 1998); St. Louis v. Fla. Int’l Univ., 
    60 So. 3d 455
    , 458 (Fla. Dist.
    Ct. App. 2011).
    Additionally, because we conclude the district court properly granted summary judgment
    as to Tebo’s Title VII discrimination claims, we need not address her 42 U.S.C. § 1983 claim, as
    that claim is a parallel remedy to Title VII. See Cross v. State of Ala., State Dep’t of Mental Health
    & Mental Retardation, 
    49 F.3d 1490
    , 1508 (11th Cir. 1995) (“When section 1983 is used as a
    parallel remedy for violation of . . . Title VII, the elements of the two causes of action are the
    same.”).
    3
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    Here, assuming Tebo made a prima facie case of discriminatory discharge,
    she failed to show that the City’s legitimate, non-discriminatory reasons for firing
    her were pretext for gender discrimination. The termination letter, and its
    addendum, identified several non-discriminatory reasons for Tebo’s termination,
    all of which Parrott has maintained throughout the litigation were the actual basis
    for his decision. Specifically, the record demonstrates Parrott believed Tebo was
    trying to undermine him to other employees, the mayor, and the city council;
    provided false and misleading statements concerning an internal investigation into
    allegations against another city employee; failed to obey certain directives given to
    her by a supervisor; and used an unauthorized email account to send and receive
    official communications. Whether he—and, by extension, the City—was mistaken
    in these beliefs is not relevant to our inquiry, and it is not our role to determine
    whether Tebo was, for example, actually insubordinate. Alvarez v. Royal Atl.
    Developers, Inc., 
    610 F.3d 1253
    , 1266 (11th Cir. 2010) (“The inquiry into pretext
    centers on the employer’s beliefs, not the employee’s beliefs and, to be blunt about
    it, not on reality as it exists outside of the decision maker’s head.”).
    Tebo failed to rebut these reasons head-on with evidence that they were false
    or that the decision to terminate her was made solely because of her gender.
    Chapman v. AI Transp., 
    229 F.3d 1012
    , 1030 (11th Cir. 2000) (en banc); St.
    Mary’s Honor Ctr. v. Hicks, 
    509 U.S. 502
    , 515 (1993) (“[A] reason cannot be
    4
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    proved to be ‘a pretext for discrimination’ unless it is shown both that the reason
    was false, and that discrimination was the real reason.”). Accordingly, we affirm
    the district court’s grant of summary judgment as to Tebo’s gender-discrimination
    claims.4
    B. Retaliation
    Where, as here, a plaintiff uses circumstantial evidence to prove retaliation
    under Title VII, we apply the same McDonnell Douglas burden-shifting approach
    discussed above. Brown v. Ala. Dep’t of Transp., 
    597 F.3d 1160
    , 1181 (11th Cir.
    2010). The plaintiff bears the ultimate burden of proving retaliation by a
    preponderance of the evidence and that the reason provided by the employer is a
    pretext for prohibited retaliatory conduct. 
    Id. To establish
    a prima facie claim of retaliation under Title VII, a plaintiff
    must prove that she: (1) engaged in statutorily protected activity; (2) suffered a
    materially adverse action; and (3) there was some causal relation between the two
    events. Goldsmith v. Bagby Elevator Co., Inc., 
    513 F.3d 1261
    , 1277 (11th Cir.
    2008). While the parties appear to agree Tebo suffered a materially adverse
    4
    In her brief, Tebo argues, for the first time, that her complaint should have survived
    summary judgment because she presented a “convincing mosaic” of circumstantial evidence that
    created a triable issue as to Parrott’s discriminatory intent. See Smith v. Lockheed-Martin Corp.,
    
    644 F.3d 1321
    (11th Cir. 2011). However, because Tebo failed to raise this argument before the
    district court, it is waived on appeal. See Bryant v. Jones, 
    575 F.3d 1281
    , 1296 (11th Cir. 2009).
    5
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    action—her termination—Appellees contest whether she has met the remaining
    two elements. However, like the district court, we conclude Tebo set forth a prima
    facie case of retaliation.
    Appellees argue Tebo did not engage in statutorily protected activity
    because her “informal complaint to the EEOC was not really a claim of
    discrimination,” but part of her ongoing deliberate effort to undermine Parrott. To
    the extent Appellees assert Tebo’s letter to the EEOC is not protected activity
    because it was not a formal complaint, we have previously determined that
    informal complaints can constitute protected activity. See Rollins v. State of Fla.
    Dep’t of Law Enforcement, 
    868 F.2d 397
    , 400 (11th Cir. 1989) (“[T]he protection
    afforded by the statute is not limited to individuals who have filed formal
    complaints.”). As to Appellees’ assertion that Tebo’s letter is not protected
    because it was part of her ongoing insubordination, we do not find this argument
    compelling. Appellees correctly note we have held that “the manner in which an
    employee expresses her opposition to an allegedly discriminatory employment
    practice must be reasonable.” 
    Id. at 400-01.
    But even assuming we agreed with
    Appellees that Tebo’s general conduct toward and concerning Parrott was
    otherwise unreasonable, there is no indication that the specific activity at issue
    here—Tebo’s informal complaint to the EEOC—was conducted in an
    unreasonable or disruptive manner. 
    Id. 6 Case:
    18-13819     Date Filed: 09/03/2019    Page: 7 of 9
    Appellees also argue Tebo failed to show a causal connection between the
    protected activity and her termination because several intervening acts—
    specifically Tebo’s actions identified in the termination letter—broke any causal
    link. However, for purposes of determining whether Tebo has made a prima facie
    case, we conclude the close temporal proximity between Tebo’s protected activity
    and her termination—the record indicates Parrott terminated Tebo a mere 32 days
    after receiving her informal complaint—is sufficient to satisfy the causation
    element. See Thomas v. Cooper Lighting, Inc., 
    506 F.3d 1361
    , 1364 (11th Cir.
    2007) (“The burden of causation can be met by showing close temporal proximity
    between the statutorily protected activity and the adverse employment action.”).
    Having concluded Tebo established a prima facie case of retaliation, we turn
    to whether she offered sufficient evidence to create a jury issue as to whether
    Appellees’ proffered reasons for Tebo’s termination were pretext for retaliation.
    Viewing the evidence in the light most favorable to her, a jury could reasonably
    infer that Parrott retaliated against her after he was notified, on March 16, 2015,
    that she sent a letter to the EEOC alleging he had engaged in a pattern of
    discriminatory conduct. As discussed above, the record shows close temporal
    proximity between the protected activity and her termination, indicating that the
    two were related. Parrott admitted he learned of Tebo’s letter to the EEOC on
    March 16, 2015, and began drafting her termination around the same time. Within
    7
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    three days of learning of Tebo’s letter, Parrott had taken away one of her
    significant job duties and given it to another employee. Within 16 days, the city
    council stripped her of her job title and voted to replace her with Parrott, and
    within a month, Parrott fired her.
    The district court found the temporal proximity “troubling” but ultimately
    concluded it was insufficient, on its own, to create a triable issue as to pretext.
    While it generally is true that temporal proximity, though relevant, is insufficient
    on its own to establish pretext, see Jones v. Gulf Coast Health Care of Delaware,
    LLC, 
    854 F.3d 1261
    , 1276 (11th Cir. 2017), here there is circumstantial evidence
    beyond the mere timing of Tebo’s firing to suggest Parrott’s proffered reasons for
    her termination were pretextual. In particular, we find it relevant that all the
    reasons for Tebo’s firing listed in the termination letter arose from conduct that
    occurred—or, in the case of Tebo’s unauthorized email account, was discovered—
    after Parrott learned of the EEOC complaint and began drafting the letter. From
    this a reasonable juror could conclude that Parrott was looking for reasons to fire
    Tebo after he learned of her letter to the EEOC. Accordingly, we reverse the
    district court’s ruling granting summary judgment as to Tebo’s retaliation claims
    and remand for further proceedings.
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    II. CONCLUSION
    For the reasons discussed above, we affirm the district court’s grant of
    summary judgment as to Tebo’s gender discrimination claims, but reverse and
    remand as to her retaliation claims.
    AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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